Early Assertion of Right to Speedy Trial Better than Later

As one judge succinctly stated, “a belated assertion of a procedural due process right to a speedy SVP trial is entitled to less weight than a prompt assertion of such a right.” While the context of this statement was within a sexually violent predator trial, a similar analysis applies to a “regular” criminal case wherein defendant seeks dismissal of the case for a Sixth Amendment violation. To read more about this claim and how a judge evaluates it, please click on the following link – https://www.greghillassociates.com/early-assertion-of-right-to-speedy-trial-better-than-later.html

DUI Tests and Evidence Code § 664 Presumptions

DMV Hearings can be quite frustrating because attorneys are taught about the Evidence Code in law school and then we are testified on California evidence law on the Bar Exam.  In the course of practice, we may get to see a judge rule on evidentiary objections in court.  So when an attorney makes evidentiary objections at a DMV Hearing, the attorney is often quite confident in how the objection should be ruled upon by the DMV.  However, this often does not happen, making counsel angry that the “DMV is not following California law.”  To read an article on how one can maneuver through the evidentiary issues in a DMV hearing, please click on the following link – https://www.greghillassociates.com/dui-tests-and-evidence-code-664-presumptions.html

Sixth Amendment, Ineffective Assistance of Counsel

To prove ineffective assistance of counsel (IAC), one must show first, that counsel’s performance fell below “an objective standard of reasonableness under prevailing professional standards” and second, “that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland v. Washington (1964) 466 U.S. 668.  This is a tough standard to meet, so knowing a bit about what qualifies and what does not is helpful before retaining an attorney to file a petition for writ of habeas corpus based on IAC.  To read a short article on proving IAC, please click on the following link – https://www.greghillassociates.com/sixth-amendment-ineffective-assistance-of-counsel.html

Prop 57 & Juvenile Filing Only Applies to Active Cases

It is not uncommon for someone to call our office and ask about “the new laws announced by the DA, George Gascon, for taking off enhancements.”  A discussion then follows about how there were no “new laws” put into effect and that his “special directives” were stopped in part by a civil restraining order granted by a civil judge.  However, we usually ask the caller about other facts of the case because there indeed are some new laws that do apply, but in limited circumstances.  One is the new Proposition 57 and Senate Bill 1391 regarding the filing of a case against a juvenile and also against a juvenile age 14 o4 15 when the crime took place.  Sometimes, these laws can have retroactive effect if there is a valid petition for resentencing filed, i.e. under AB 865 or Penal Code § 1437.  To read more about Prop 57 and Senate Bill 1391, please click on the following link – https://www.greghillassociates.com/prop-57-juvenile-filing-only-applies-to-active-cases.html

Under SB 1437, Resentence to the Underlying Felony?

Often lost amid the excitement of finding out one is eligible for resentencing under Senate Bill 1437 (due to the new felony murder rule changes) is the answer to “so what happens at resentencing?”  Will defendant be simply released for time served?  Will defendant have a shorter sentence and if so, how will that be determined by the judge?  What would the length of a new sentence depend upon?  To read a short article that discusses this issue, please click on the following link – https://www.greghillassociates.com/under-sb-1437-resentence-to-the-underlying-felony.html

Prosecutor Must Disclose Summary of Expert Testimony

If a criminal defense attorney is not aware of the prosecutor’s obligations, that criminal defense attorney cannot ask the prosecutor for certain things that may help defendant.  One of those things that prosecutors generally do not like to provide is a summary of their expert’s testimony before the expert testifies.  This summary must be provided to defense counsel under Penal Code § 1054(f).  To read a short article on how this applies, please click on the following link – https://www.greghillassociates.com/prosecutor-must-disclose-summary-of-expert-testimony.html

Court May Consider Facts Admitted as Basis of Prior Plea.

When a defendant faces a possible sentence enhancement based on a prior conviction out of state, the question is whether the definitions and elements of a crime in another state meet the California definitions or requirements to permit the out-of-state conviction to “count” as a prior strike, prior serious felony, etc.  In looking at the prior record, the Sixth Amendment right to confront one’s accuser limits what a California court can legally consider.  People v. Gallardo, a 2017 California Supreme Court case, set such limits, but allows a court here to consider those facts admitted by defendant in another state as part of the plea colloquy.  What does this include?  To read more about this issue, please click on the following link – https://www.greghillassociates.com/court-may-consider-facts-admitted-as-basis-of-prior-plea.html

Does Prop 64 Mean I Can Have Marijuana in Prison and Jail?

While it may seem like an absurd question to some, to others it seems like a legitimate question: does the Adult Use of Marijuana Act (Prop 64) permit adults in prisons and jail to have and use marijuana there? The answer is no, but why? To read the answer to why this is not legal, please click on the following link – https://www.greghillassociates.com/does-prop-64-mean-i-can-have-marijuana-in-prison-and-jail.html

When is a Prior Conviction Outside California a Strike?

It may come as quite a surprise to some that a conviction for, for example, residential burglary outside California can be considered a prior strike for purposes of sentencing later in California under the Three Strikes Act. The 2017 case of People v. Gallardo is the most recent case on this issue that changed the law on how a California judge is supposed to evaluate whether an out-of-state conviction meets the same elements required for a conviction in California for such a crime. To see how Gallardo is applied to a recent California case with robbery conivctions in North Dakota, please click on the following link – https://www.greghillassociates.com/when-is-prior-conviction-outside-california-a-strike.html

Duty to Maintain Innocence under McCoy v. Louisiana?

When a client tells expressly his attorney that he wants to maintain his innocence at trial, an attorney has a “duty not to steer a ship the other way.” The attorney cannot concede guilt at any point. For a recent appellate decision that interpreted this duty and violation of this sarcrosant duty, please click on this link – https://www.greghillassociates.com/duty-to-maintain-innocence-under-mccoy-v-louisiana.html